Holc-Gayle v Makers UK Limited

An equal pay questionnaire does not constitute a grievance for the purpose of the statutory grievance procedure

Under the Employment Act 2002 (Dispute Resolution) Regulations 2004, an employee cannot bring an equal pay claim before a tribunal unless they have first followed the statutory grievance procedures (SGP). Under the SGP, the first step for the employee is to set out the grievance in writing and give it to their employer.

The Equal Pay Act gives a complainant the right to ask questions of a respondent, commonly known as the questionnaire process. A standard form questionnaire is produced by the DTI for this purpose, but a claimant is not obliged to use this form or any other form.

Under the 2004 Regulations, questions asked under the questionnaire process cannot amount to a Step 1 statement of grievance for the purposes of the SGP.

Equal pay questionnaire

Mrs Holc-Gayle was employed by Makers from 5 September 2001 until 30 November 2004. On 21 October 2004, Holc-Gale served an equal pay questionnaire on Makers using the DTI’s standard form. The form has several sections. The opening sections invite the claimant to set out their complaint and the reasons for it, followed by a section containing specific questions. Makers responded to the questionnaire on 12 November 2004.

On 2 January 2005, Holc-Gayle lodged an equal pay claim in the employment tribunal. There is a section in the claim form which requires claimants to state whether they have put their complaint in writing to the respondent (in other words, raised a statutory grievance by complying with step 1 of the procedure). In response to this, Holc-Gale replied “yes” and stated that she had done so on the date that the questionnaire was served on Makers. In its response form, Makers agreed that the claimant had raised a grievance and referred to the equal pay questionnaire.

At a subsequent case management discussion, Makers changed its position and argued that the questionnaire could not amount to a statement of grievance under the SGP and therefore the tribunal did not have jurisdiction to hear the claim. Holc-Gayle argued that only her questions within the questionnaire form were exempted from forming part of a statutory grievance and that the exemption did not apply to the introductory statements in the questionnaire.

The EAT, upholding the tribunal’s decision, decided the exemption does apply to the whole of the standard form questionnaire and not just the questions within the form. The EAT therefore upheld the tribunal’s decision that the tribunal did not have jurisdiction to hear the claim because Holc-Gale had not complied with the statutory grievance procedure.

Key points

A tribunal does not have jurisdiction to hear certain claims, including equal pay and other discrimination claims, unless the claimant has complied with Step 1 of the SGP.

Questions asked under the questionnaire process are exempted from amounting to a Step 1 statement of grievance and, if the standard DTI form is used, the whole questionnaire benefits from this exemption.

A statement setting out the claimant’s complaint which does not form part of the DTI’s standard form or a covering letter could well amount to a Step 1 grievance notification.

What you should do

If you receive an equal pay (or any other discrimination) claim, check the claimant has complied with the SGP.

Be aware that a statement sent with questions under the questionnaire process, or a covering letter, could amount to a Step 1 letter under the SGP. Line managers and all HR staff should be trained so they understand that.

If you receive a questionnaire which is not on the standard form or a covering letter under the questionnaire process, consider whether it might amount to a grievance and therefore require you to comply with the subsequent steps of the SGP. Under the standard procedure this would require you to invite the employee to a meeting and offer a right of appeal from any outcome. If the individual is no longer employed by you, you may be able to agree with the individual to use the statutory modified grievance procedure which does not require a meeting to be held or an appeal to be given. A failure to comply with the SGP could result in an uplift on any compensation awarded to the claimant of between 10% and 50%.